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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Dennis Lee WILLIAMS, Defendant and Appellant.


Decided: August 28, 1987

Arthur H. Weed, Santa Barbara, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jay M. Bloom and Maxine P. Cutler, Deputy Attys. Gen., for plaintiff and respondent.


Defendant appeals from a judgment of conviction and sentence for a violation of Penal Code section 504a, embezzlement of leased property.


An amended information was filed by the Riverside County District Attorney charging defendant with the crime of embezzling leased property from Pedley Equipment Rental on April 23, 1984.   It was further alleged that defendant suffered three prior felony convictions for which he served separate prison terms and did not remain free from prison custody pursuant to Penal Code section 667.5, subdivision (b).

Prior to trial, defendant made two motions in limine.   The first was to request that the trial court disallow the use of his prior felony convictions for impeachment should he testify.   The second was to object to the jury's hearing evidence of the fact of a similar uncharged crime allegedly committed by defendant subsequent to the commission of the crime charged.   Defendant received unfavorable rulings on both motions.   Consequently, the jury heard evidence of the uncharged crime and defendant chose not to testify at his trial to avoid impeachment with the priors.

Following a guilty verdict by the jury on the embezzlement charge, defendant waived jury and had a court trial on the validity of the priors.   The first and third alleged priors were found not true by the trial court.   The second alleged prior was found to be true and was ultimately used to enhance the midterm prison sentence imposed.

Defendant raises three issues on appeal:

(1) The trial court failed to exercise its discretion under Evidence Code section 352 before ruling that the prior felony convictions could be used to impeach defendant's testimony.

(2) The court erred in admitting into evidence the fact of the uncharged criminal act.

(3) The court improperly enhanced defendant's prison sentence.




To begin our analysis of defendant's final contention, we should be mindful of the provisions of section 667.5, subdivision (b), which was the authority used to enhance defendant's sentence, and subdivision (f), which permits the use of certain foreign felony convictions to enhance a sentence.5  Subdivision (b) makes two provisions:  (1) it provides for the enhancement of the present prison term for each separate prior prison term served for any felony;  and (2) it rewards a defendant who has remained free from prison custody and from a felony conviction for at least five years preceding the present conviction by disallowing the use for enhancement purposes of any prior felony conviction he may have suffered prior to the five-year “washout period.”

 Subdivision (f) expands upon the enhancement portion of subdivision (b) by permitting the use of a conviction in another jurisdiction to enhance provided the offense would have been a felony in California, and the defendant served more than one year in prison for the foreign conviction.   Similarly, a felony conviction in another jurisdiction that would have been a felony conviction in this state would deny a defendant the benefit of the washout period regardless of whether he served a prison term for the conviction.  (See Pen.Code, § 667.5, subd. (b), which provides in part:  “․ defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”  (Emphasis added.))

The problem arises when, as in the instant case, the foreign felony conviction may not have been a felony in California.   In that case, subdivision (f) clearly bars its use to enhance the present sentence, but does it also bar its use in finding the defendant did not remain “free of both prison custody and the commission of an offense which results in a felony conviction.”?

In this instance the trial court concluded that it does not and denied defendant the benefit of the washout period.   The facts are as follows.

The amended information alleged three prior felony convictions as Penal Code section 667.5, subdivision (b) enhancements.   Prior number one (Colorado prior) alleged that defendant suffered a conviction on November 20, 1978, in the State of Colorado for the crime of criminal impersonation, a felony.   The second alleged prior (California prior) was a felony grand theft conviction in California on September 18, 1970.   The third prior was a felony drug sales conviction in Montana in 1969.   No evidence was presented at the trial to show that defendant served a separate prison term for the Montana prior, and it was found to be not true.   Evidence was presented to show that defendant did serve separate prison terms for the Colorado and California priors.

 The trial court found the Colorado prior to be not true because it did not meet the requirements of Penal Code section 667.5, subdivision (f) as interpreted by the Supreme Court in People v. Crowson (1983) 33 Cal.3d 623, 630–635, 190 Cal.Rptr. 165, 660 P.2d 389.   Failing in that respect, the court ruled that the Colorado prior itself could not enhance the sentence for the embezzlement conviction.6

However, the lower court considered the fact of the Colorado felony conviction and the resulting prison sentence served by defendant in finding the defendant did not remain free of both prison custody and the commission of an offense resulting in a felony conviction for a period of five years between his release from custody for the California prior, and his conviction of the present offense.7  Based on this finding the lower court used the California prior to enhance the sentence imposed for the embezzlement conviction.   It is defendant's contention that the court could not use the Colorado prior to deny him the benefit of the washout period since that prior could not be used to enhance.

We have found no cases specifically dealing with this issue.   It is a matter of first impression.   Therefore, we must ferret out the “intent of the Legislature so as to effect the purpose of the law.”  (Taylor v. McKay (1975) 53 Cal.App.3d 644, 650, 126 Cal.Rptr. 204.)

 To hold that an out-of-state felony conviction which does not qualify under subdivision (f) as a felony offense in this state may nevertheless be used to find the defendant ineligible to receive the benefit of the washout period requires us to find the Legislature intended that the phrase “a felony conviction” as used in the washout provision of subdivision (b) has a broader meaning than the phrase “any felony” as used in the enhancement provision of that subdivision and as that phrase is further defined in subdivision (f).   We would have to find that the former phrase would include a felony conviction in another jurisdiction which may be only a misdemeanor, or even no crime at all, in this state.

Absent anything in the statute to the contrary, it is presumed “ ‘that a repeated phrase or word in a statute is used in the same sense throughout.’ ”   (People v. Crowson, supra, 33 Cal.3d 623, 633, 190 Cal.Rptr. 165, 160 P.2d 389, quoting People v. Hernandez (1981) 30 Cal.3d 462, 468, 179 Cal.Rptr. 239, 637 P.2d 706.)   While it is true that the Legislature imposed a requirement on felony convictions used to enhance (i.e. a prison term was served) that was not imposed on felony convictions affecting the washout period, we see nothing in the statute that would suggest the Legislature intended to give a different meaning to the term “felony.”   We can imagine problems of constitutional magnitude if we were to hold the statute permitted one defendant to receive the benefit of the washout period because his conduct in California within the five-year period amounted to only a misdemeanor, while another defendant was denied that benefit because the same conduct committed in another state was a felony in that state.

Therefore, we hold that the five-year washout period is affected only if the out-of-state offense which results in a felony conviction would also have been a felony offense in California.   Similarly, any prison term served on the out-of-state conviction would affect the washout period only if the conviction so qualified.   The court erred in imposing the one-year enhancement for the 1970 prior felony conviction.


The judgment is modified to strike the one-year enhancement.   Except as modified, judgment is affirmed.



FOOTNOTE.   See footnote *, ante.

5.   Penal Code section 667.5, subdivision (b) reads as follows:  “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”Penal Code section 667.5, subdivision (f) reads as follows:  “A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which if committed in California is punishable by imprisonment in state prison if the defendant served one year or more in prison for the offense in the other jurisdiction.   A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction.”

6.   We agree with the trial court's ruling that the Colorado prior does not qualify as an enhanceable prior under subdivision (f).   The Colorado statute defendant violated proscribes certain specified acts committed by a person knowingly assuming a false identity.   Violation of the statute is a felony.   The California Penal Code prohibits many of the same acts, but with one important difference.   In Colorado, a false impersonator who does an act with the intent to benefit himself or another or to injure or defraud another is guilty of a felony.   The corresponding California statute prohibits only those acts which benefit the impersonator or another, and says nothing of injuring or defrauding another.  (See Pen.Code, § 529, subd. (3).)  The California statutes dealing with fraud by an impersonator (e.g., Pen.Code, § 532) punish such acts as felonies or misdemeanors, depending on the value of the money or property received.   Therefore, we have no idea whether defendant's criminal act in Colorado would have been a felony or a misdemeanor in this state, or even whether it would have been a crime.

7.   It was stipulated by counsel that defendant was finally released from prison custody for the California prior on June 20, 1974.

EDWARDS,† Associate Justice. FN† Assigned by the Chairperson of the Judicial Council.

CAMPBELL, P.J., and McDANIEL, J., concur.